Penalise Marital Rape in India

Sexual intercourse is a private and intimate affair that requires consent of both partners. However marriages in India are often understood to mean implied consent (at least) from the wife’s side to all sexual activities that are initiated by the husband. It is disturbing to know that India continues to one of the few countries in the word today that still fails to recognise sexual assault committed by the husband on his wife during the course of marriage as “rape”.

While international organisations like the United Nations has been urging India to make marital rape punishable, the issue is yet to get the importance that it truly deserves.

Recently the Kerala High Court, on July 30 2021 held marital rape to be a valid ground for seeking divorce. The court reasoned that marital rape was a form of cruelty and every person had a right to respect his or her mental and physical integrity including integrity to the body. A historic judgment of a kind, the court in its order acknowledged that sexual acts without a wife's consent would indeed amount to marital rape.

What is perhaps shocking to note is that while the Indian Penal Code 1860 (IPC) classified sexual intercourse with a woman below the age of 18 years as rape, the situation was different if the woman was married. In case of a married woman she would only be considered to have been raped, if she were below the age 14 (section 375 of the IPC). Therefore prior to the 2013 Criminal Amendment Act (the 2013 Act), strangely and sadly the position of law seems to have been that while a 15 to 18 year old woman was protected from unwanted sexual intercourse, a married 15 to 18 year old woman was simply presumed to have given her consent to “all” sexual initiatives of her husband by virtue of just “being married”.

Thankfully the 2013 Act increased the age limit for giving consent from 15 to 18. Even the Justice Verma Committee recommended removing the exception of marital rape contained in section 375 of the IPC, stating that the relation between the victim and the offender should not be valued- only consent should. However as the law, fails to penalise marital rape, often times the battered wife is only left with the option to file a complaint of abuse by the husband under The Protection of Women from Domestic Violence Act, 2005.

While there has been a constant demand from several non-governmental organisations and marital rape victims to pluck out the loopholes in our criminal justice system, there still remains a lot to be done in this regard. A large section of women continue to put up with forceful sexual intercourse, which only makes them more vulnerable to different kinds of psychological disorders and physical sufferings.

Often the arguments against penalising marital rape are manifold. Most argue that criminalising marital rape would destabilise the institution of marriage and lead disgruntled wives to easily harass their husbands. In fact such arguments seem to be very similar to arguments held in the 18^th century. Justice Hale in 1736, in his History of Pleas to the Crown said that a husband cannot be held guilty of committing rape on his lawfully wedded wife as courts view marriage as a contract and where the marriage is consented by both the parties, it is assumed that they have also consented to sexual intercourse. It seems like that our entire edifice of Indian legal jurisprudence on marital rape is based on this age old idea of the 18^th century.

However not all is lost. In the case of Justice K.S. Puttuswamy (Retd.) V. Union of India (2017) 10 SCC 1, the Indian Supreme Court emphasizes personal autonomy and confirms that a person is fully entitled to make choices on intimacy including marriage and procreation. Therefore if an individual does not consent to an intimate relation, husband or not, it should be respected and agreed upon.

While deep-rooted patriarchal and orthodox thinking are responsible for women still being considered as property of men and it is this belief that prevents our legislature from criminalising marital rape and passing of judgments similar to the one passed recently by the Chhattisgarh High Court stipulating that “sexual act with wife is not rape, even if forced”--- the progressive observation by the Supreme court in the Justice K.S. Puttuswamy case does hold a beacon of hope that positive changes can come by in the future. Although this change can only happen via amendments to personal laws of marriage and divorce and most importantly from a change in mind-set of age old beliefs and traditions which still consider it a woman’s primary duty to provide sexual pleasure to her husband.

It is time that we give women the right they deserve and value their voice and opinion. At any cost, marriage should not be considered an implied consent of a spouse to engage in sexual relations with the other. The consent of both the couple is equally necessary, with or without the institution of marriage.

(The author, Nidhi Pandey, is fourth-year students at School of Law, Jamia Hamdard, Deemed to be University, New Delhi)